The lone woman on a three-person High Court Bench hearing a horrific gang rape appeal, has declared she is not obliged to follow a much-disputed 2011 decision by the Supreme Court of Appeal that would have greatly reduced the sentence. Such a declaration is unprecedented because lower courts are bound as a fundamental principle to follow the decisions of a higher court. Judge Khosi Hadebe’s determination to maintain the life sentence imposed on one of a gang who raped a KZN woman comes in the middle of Women’s Month when issues such as the struggle to protect women from rape and to punish rapists, are highlighted. Hadebe and two other judges were considering the appeal by Xolani Ndlovu against his conviction and sentence for rape. Given life imprisonment by the Magistrate’s Court, Ndlovu wanted the court to reduce his jail term. However, the High Court spotted that the magistrate had erred in his sentence: under the SCA’s 2011 Mahlase decision, courts are not to impose life imprisonment as stipulated for gang rape, in cases where only one member of the gang was before court. Though the subject of ongoing criticism for creating anomalies and injustice, the Mahlase decision continues to be binding. The majority on the full Bench considering Ndlovu’s appeal said in view of the Mahlasedecision, the life sentence imposed on Ndlovu had to be set aside. They replaced it with a 15-year term – the maximum that the trial court could impose. Hadebe, however, said in view of the horrific nature of the gang rape it would be ‘outrageous’ to impose a far lighter sentence and that the obligation to be bound by the SCA decision ‘could be avoided’. Hadebe would have upheld the life sentence imposed on Ndlovu, but because she was in the minority, Ndlovu’s sentence will now be reduced to 15 years.

A High Court judge has found she is not obliged to follow a controversial decision of the
SCA because of the horrific facts of the gang rape she was considering.

The unprecedented decision of Judge Khosi Hadebe comes in the middle of Women’s Month,
when the question of rape and violence against women are among the issues given particular
focus.

Hadebe was one of three judges hearing an appeal by Xolani Ndlovu against his conviction and
life sentence, imposed by the Regional Magistrate’s Court. The woman at the centre of the case
told the trial court how Ndlovu and his two collaborators broke into her family home in the early
hours of the morning, pulled her out of her bed where she was sleeping with her baby, and
carried her outside where they taped up her eyes and her mouth. They took her to Ndlovu’s
room where Ndlovu stripped her and then tied her onto the bed, arms and legs spread-eagled.

Balaclavas

She was raped repeatedly by all three before being turned over and raped anally, causing her to
bleed. Hours later, when the men removed the tape from her eyes, she saw that all three were
naked. Two were still wearing the balaclavas they had on when they abducted her. Ndlovu,
however, had uncovered his face.

They tied her up, then told her they were going drinking and would kill her when they returned.
After they left, she was able to escape and ran home, stark naked, where she reported what
had happened.

Ndlovu’s two companions have never been found. He was initially sentenced to life
imprisonment but appealed to the High Court. In their judgment on appeal, two of the three
judges said they were bound by a 2011 SCA decision in the Mahlase matter, holding that courts
could not impose life imprisonment as stipulated for gang rape, where only one member of the
gang was before the court.

‘Horrendous’

The Mahlase decision has been the cause of considerable controversy ever since, with courts
commenting on the anomalies and injustice it created. Several High Court judges have tried to
find a way around the SCA decision, but in this case the majority found they were
bound to follow the decision. They said they were not concerned with whether the SCA was
wrong, but with the fact that its decisions were binding on lower courts. They therefore reduced
the life sentence imposed on Ndlovu to 15 years, the maximum that could have been imposed by the trial court. The judges commented: ‘The circumstances of the rape
were horrendous and I agree with my colleague (Hadebe) that (Ndlovu) deserved to be
sentenced to imprisonment for life. On the basis that I have explained, that option is
unfortunately not open to us.’

In her minority decision Hadebe went out on a limb. She gave graphic details of what Ndlovu
and his colleagues had done, keeping their captive completely naked during her entire ordeal,
then taunting her while they sat around naked and smoking after they had satisfied themselves
on her body.

The judge said rape stamped the authority of someone else’s control on a woman’s body and reminded every
woman and girl child of their vulnerability. It seemed there was ‘no space that is safe for
women’. The woman in this case had been kidnapped and then ‘severely, brutally and
mercilessly abused over a prolonged time’, ridiculed by Ndlovu and threatened with death.

The judge said she was aware of the SCA decision in Mahlase, but was also aware of the
criticism that decision had engendered (see for example S v Cock, S v Manuel). She herself was ‘puzzled by the reasoning’ in Mahlase and described how other High Court judges had attempted to get around the SCA decision. She said in this case the prescribed minimum sentence of 10 years ‘would be outrageous’.

‘Firm view’

In her ‘firm view’, the only appropriate sentence in this case was life imprisonment and she
found herself ‘in great difficulty’ agreeing with the reasoning in Mahlase. She quoted a 2017
case in which a judge, also wrestling with the injustice that would be done to a woman who was
gang raped, quoted another SCA decision, S v Legoa, delivered some years earlier thanMahlase.

Legoa continues to be quoted with approval by the SCA, and its principles would allow an
interpretation of the prosecution of ‘gang rape’ that was different from that in Mahlase. TheMahlase court had not considered the earlier judgment of Legoa, said Hadebe, and so theMahlase judgment did not have proper regard to the law.

Hadebe said having considered all the authorities, she was satisfied that ‘the present case was
one such deserving case where the obligation to be bound by a decision of the SCA can be
avoided’. She would thus have dismissed Ndlovu’s appeal against his life sentence.